Journeymen Pipe Fitters Local No. 392

JOURNEYMEN PIPE FITTERS LOCAL NO. 392 Journeymen Pipe Fitters Local No. 392, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of U.S. and Canada, AFL-CIO (Kaiser Engineers, Inc.) and Gary McKibben. Case 9- CB-3880 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 6, 1979, Administrative Law Judge Robert E. Mullin issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, l findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Journeymen Pipe Fitters Local No. 392, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of U.S. and Canada, AFL-CIO, Cincinnati, Ohio, its offi- cers, agents and representatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge.2 I Respondent has excepted, inter alia, to the Administrative Law Judge's refusal to allow Respondent to present testimony regarding the Charging Party's failure to exhaust internal remedies by initiating the complaint procedures set forth in the posted hiring hall provisions of Re- spondent's collective-bargaining agreement with the Mechanical Contrac- tors Association of Cincinnati We find no merit to this exception Al- though Respondent contends that the Board should defer consideration of the alleged violation of the Act under the rationale of Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), we have previously held that deferral to arbitration is not appropriate in cases where the interests of the aggrieved employee are in apparent conflict with the interests of the parties to the contract. Local Union 675., Interna- tional Brotherhood of Electrical Workers. AFL-CIO (S & M Electric Co.), 223 NLRB 1499 (1976), and cases cited therein. We find that principle apposite here. Member Jenkins would not in any event defer to the con- tractual grievance procedure for the reasons set forth in his dissenting opinion in Collyer., supra, and subsequent cases. 2 The Administrative Law Judge inadvertently failed to conform the notice to the recommended Order, we have corrected the notice accord- ingly. 252 NLRB No. 44 CHAIRMAN FANNING, concurring: While I agree with my colleagues that Respond- ent, by failing to follow the contractual terms gov- erning the operation of its exclusive hiring hall and by failing to inform applicants for referral that the posted referral procedure was not the system actu- ally being followed in referring job applicants, vio- lated Section 8(b)(1)(A) and (2) of the Act, 3 I cannot agree with their affirmance of the Adminis- trative Law Judge's finding that Respondent like- wise breached its duty of fair representation to the job applicants involved. A union's duty to fairly represent employees is, in my view, breached only when it deals in bad faith, and not when it is merely negligent or nonresponsive.4 I would not find the evidence herein to establish that Respond- ent acted in bad faith in any regard, and therefore would not find it to have violated the Act through a failure to fairly represent applicants for jobs as would my colleagues on the majority. The relevant facts, more fully set forth in the Administrative Law Judge's Decision, are, briefly, as follows: Respondent at all material times has been party to a collective-bargaining agreement with the Me- chanical Contractors Association of Cincinnati (herein called MCA), pursuant to which Respond- ent operates an exclusive hiring hall. The hiring hall provisions of the contract are posted in the union hall and require, inter alia, that ". . . Quali- fied applicants shall be registered on the appropri- ate craft out-of-work list in the order of time and date of registration," and that Respondent maintain and utilize the craft out-of-work list on a first in, first out basis. On March 13, 1978, Charging Party McKibben, a pipefitter and member of a sister local of the same International as Respondent, filled out an "application for registration" at the hiring hall. Re- spondent had just received a work request from Kaiser Engineers, Inc. (herein called Kaiser), for welders at a site where it was constructing a nucle- ar power plant,5 and Respondent's business man- ager, Robert C. Sullivan, offered to refer McKib- ben to the job. McKibben declined the referral on grounds that he did not have a welding certificate. I also agree that the matter should not be deferred to the parties' contractual grievance procedure. See my dissenting opinion in Collyer In- sulated Wire A Gulf and Western Systems Co., 192 NLRB 837 (197l). 4 See my dissenting opinion in Local No. 324. International Union of Operating Engineers. AFL-CIO (Michigan Chapter. Associated General Contractors of America. Inc.), 226 NLRB 587 (1976). Bad faith may, of course, encompass "arbitrary conduct" of a nature which restrains or co- erces employees This Respondent has not, in my view, demonstrated conduct of such an arbitrary nature as to constitute bad faith. 5 By virtue of a collective-bargaining agreement between Local 392 and the National Contractors Association, of which Kaiser is a member, Kaiser is bound by the referral procedures set forth in the agreement which Local 392 has with MCA 417 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD Respondent did not subsequently refer McKibben to any other job, although the hiring hall received numerous requests for nonwelder pipefitters.6 Sullivan, who was the sole witness at the hear- ing, testified that from August 1977 to January 1979 there was no lack of work for Respondent's membership and, consequently, he did not maintain a summary list of all out-of-work hiring hall regis- trants as required by the collective-bargaining agreement. During this time he filled job requests with men present in the hiring hall the day the re- quest was received, called other local unions of the International, contacted men he knew were soon to be laid off, or utilized members of other locals of the International who happened to be in the hall seeking referrals. According to Sullivan, once a re- ferral was offered, if a registrant either accepted or declined it, the registration form was filed alpha- betically in a file cabinet in the office. 7 Inasmuch as no summary out-of-work list existed when McKibben registered on March 13, Sullivan filed McKibben's application for registration form in a file cabinet after McKibben declined to take the welder's job at Kaiser. It is however, that, had the posted contractual provision requiring maintenance of the craft out-of-work list been fol- lowed, McKibben should have been referred to the next available pipefitting job. It is well established that a wide range of reason- ableness must be allowed a statutory bargaining representative in serving the unit it represents, sub- ject always to complete good faith and honesty of purpose in the exercise of its discretion. Ford Motor I Sullivan distinguished between pipefitters and welders, as is evi- denced by his testimony as follows: Q. There was some testimony when Mr. Keenan [counsel for the General Counsel] was asking you questions about your method of placing calls to other locals to see if you could obtain men. Did you call other locals only when you had exhausted your supply of appli- cations for employment at the hiring hall that were turned in there? A. I would say normally that's the procedure. The only time I de- viate from it is if, you know, if there were six people there that were pipefitters and I needed welders, I may have called local unions and asked them to supply me welders because the people that were on registration at that time could not fill the qualifications I'm not saying that it happened at this particular time but that has happened in the past. The Administrative Law Judge found that it appeared that applica- lions for registration filled out by jobseekers who came into Respondent's hiring hall were good only for the day the registration was completed, and were then filed away in a filing cabinet and not again used for job- referral purposes. I note, however, that Sullivan testified, without contra- diction, that he held such applications until such time as the applicant was either referred to a job or refused work before placing the applica- tion in the filing cabinet. I further note that Charging Party McKibben had indicated no special skills on his pipefitting registration application, and refused only a job as a welder at a nuclear power plant construction site, which required welding skills for which McKibben did not regard himself and had not indicated himself qualified. In these circumstances, I find Respondent's fairlure thereafter to refer McKibben to a pipefitting job for which he did qualify to be unlawful irrespective of whether the applications were permanently filed away the day they were submitted or only after the applicant had been offered referral to a job. Co. v. Huffman, et al., 345 U.S. 330, 337 (1953). However, where referral under an exclusive hiring hall agreement is conditioned upon clear and unam- biguous standards set forth in that agreement, the refusal to refer an employee who qualifies for re- ferral under such standards, without more, suffices to establish, prima facie, a violation of Section 8(b)(l)(A) and (2) of the Act. Thus, under an ex- clusive hiring hall arrangement a labor organization is under a duty to conform with and apply lawful contractual standards in administering registry, preference, and referrals, and any departure there- from resulting in a denial of employment to a member falls within that class of discrimination which inherently encourages union membership. International Brotherhood of Electrical Workers. Local 592 (United Engineers & Construction Co.), 223 NLRB 899, 901 (1976), and cases cited therein; Local Union No. 725 of the United Association of Journeymen and Apprentices of the Plumbing and Pi- pefitting Industry of the United States and Canada, AFL-CIO (Powers Regulator Company), 225 NLRB 138 (1976). A union may rebut such a prima facie case by showing that its interference with employ- ment was pursuant to a valid union-security clause, or that the action was necesary to the effective performance of its function of representing its con- stituency. See, e.g., International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, Local 22 (Rosendahl, Inc.), 212 NLRB 913 (1974), and International Union of Operating Engineers, Local 18, AFL-CIO (Ohio Contractors Association), 204 NLRB 681 (1973), remanded to the Board at 496 F.2d 1308 (6th Cir. 1974), with the Board reaf- firming at 220 NLRB 147 (1957). Respondent in the instant case has adduced no evidence that its departure from the posted con- tractual procedures was essential to its effective representation of employees. Rather, Respondent defends its abandonment of maintenance of the craft out-of-work list only on the basis that, due to virtually full employment enjoyed by users of its hiring hall during the applicable time period, refer- rals were made directly from the registration forms with the forms themselves serving as a list.8 Yet, Respondent did not inform all applicants for regis- tration of the procedure it was using, and the con- tractual provisions requiring maintenance of a sum- mary list remained posted in the hiring hall. Thus, users of Respondent's hiring hall were not notified ' Had McKibben's name been placed on a pipefitters out-of-work list, his refusal to accept the Kaiser welder's job would not have affected his position on the pipefitters list, or resulted in the loss of employment op- portunities when the welder's job was refused, inasmuch as Respondent distinguished between pipefitters and welders in its job referrals (see fn. 6. rupra) 418 JOURNEYMEN PIPE FITTERS LOCAL NO. 392 of the actual procedures utilized by Respondent which controled their opportunities for jobs. I therefore find, in agreement with my colleagues, that by operating its hiring hall in disregard of the provisions of its collective-bargaining agreement, without informing job applicants that the posted provisions were not being adhered to, Respondent violated Section 8(b)(1)(A) and (2) of the Act. I would not, however, as stated, find Respondent's conduct in this regard to constitute bad faith so as to also breach its duty of fair representation to the job applicants concerned. Accordingly, I would affirm the Administrative Law Judge's finding that Respondent violated Section 8(b)(1)(A) and (2) of the Act only on the basis of its failure to conform with and apply the lawful contractual standards for referral set forth in its collective-bargaining agree- ment. APPENDIX NOTICE To MEMBERS POSTED) BY ORDER OF ITHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT operate our exclusive hiring hall and referral system for referral of employ- ees to Kaiser Engineers, Inc., or any other em- ployer, without using an out-of-work list, without any objective criteria or standards, or in a discriminatory manner. WE WILL NOT fail or refuse to refer Gary McKibben to work as an employee of Kaiser Engineers, Inc., or any other employer, pursu- ant to the operation of our exclusive hiring hall and referral system for the referral of em- ployees to employers, without using an out-of- work list, without any objective criteria or standards, or in discriminatory manner, there- by causing or attempting to cause Kaiser Engi- neers, Inc., or any other employer, to deny McKibben employment. WE WILL NOT in any like or related manner restrain or coerce employees or applicants for employment in the exercise of the rights guar- anteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL pay Gary McKibben the amount of earnings which he lost because of our fail- ure to refer him in a nondiscriminatory manner on and after March 13, 1979, to work as an employee of Kaiser Engineers, Inc., or of any other employer, plus interest. WE WILL operate our exclusive hiring hall and referral system in a nondiscriminatory manner based on objective criteria and stand- ards. JOURNEYMEN PIPE FITTERS LOCAL No. 392, AFFILIATED WITH THE UNITED ASSOCIATION OF JOURNEY- MEN AND APPRENTICES OF THE PILUMBING AND PIPE FITTING INDUS- TRY OF U.S. AND CANADA, AFL- CIO DECISION STATEMENr OF THE CASE ROBERT E. MUI.LIN, Administrative Law Judge: This case was heard on June 28, 1979, in Cincinnati, Ohio, pursuant to a charge duly filed and served' and a com- plaint issued on January 25 and amended on June 11, 1979. The complaint, as amended, presents the question as to whether, in the operation of its hiring hall, the Re- spondent violated Section 8(b)(1)(A) and (2) of the Na- tional Labor Relations Act, as amended. The Respondent has conceded certain facts with respect to the Employ- er', business operations, but it denies all allegations that it has committed any unfair labor practices. At the hearing all parties were represented by attor- neys. All were given full opportunity to examine and cross-examine witnesses and to file briefs. Oral argument was waived. Subsequent to the close of the hearing, able briefs were received from both the General Counsel and the Respondent. Upon the entire record in the case, including the briefs of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Kaiser Engineers, Inc. (herein called Kaiser), an Ohio corporation, is engaged in the construction industry as a general contractor. For some time Kaiser has been en- gaged in the construction of the Zimmer Power Plant, a nuclear power source, located near Moscow, Ohio. During the 12 months prior to the issuance of the com- plaint, a representative period, Kaiser purchased and re- ceived goods and materials valued in excess of $50,000 which were shipped to the Moscow construction site di- rectly from points outside the State of Ohio. Upon the foregoing facts, the Respondent concedes, and it is now found, that Kaiser Engineers, Inc., is, and has been, an employer within the meaning of Section 2(2) of the Act, and that it is engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. The charge was filed on May 24, 1978. and served on the Respond- ent the following day 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE RESPOND)ENT LABOR ORGANIZATION Journeymen Pipe Filtters Local No. 392, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, the Respondent, herein called the Union or Local 392, is a labor organization within the meaning of Section 2(5) of the Act. The Respondent acknowledges, and it is now found, that Robert C. Sulli- van, business manager for Local 392, is, and has been, an agent for the Respondent within the meaning of Section 2(13) of the Act. 111. TH[ AI..F-(l(tl) UNFAIR ABOR PRACTICIES A. The Facts At all times material herein, the Respondent has main- tained a collective-bargaining agreement between it and the Mechanical Contractors Association of Cincinnati, herein called MCA, which contract provides for the maintenance of an exclusive hiring hall for referral of employees by the Respondent to positions of employ- ment. 2 Finally, by virtue of a collective-bargaining agreement effective on July 15, 1977, and remaining in effect until July 15, 1979, between Local 392 and the Na- tional Contractors Association, of which Kaiser is a member, Kaiser is bound by, and has abided by, the re- ferral procedures set forth in the agreement which Local 392 has with MCA. The General Counsel alleges that since about March 13, 1978, to on or about April 27, 1979, the Respondent discriminatorily, arbitrarily, and capriciously refused to refer Gary McKibben to Kaiser and to other prospective employers who are parties to the above-described collec- tive-bargaining agreement. This allegation is denied by the Respondent in its entirety. To the facts in connection with this issue I will now turn. McKibben, the Charging Party, is a journeyman pipe- fitter who is not a member of Local 392, but is a member of Local 59, a sister local of the United Association that is located in the Cincinnati area. Over the years, howev- er, he has used the hiring hall of Local 392 on numerous occasions. Pursuant to its collective-bargaining agreements throughout the period in question the Respondent has maintained an exclusive hiring hall. The relevant hiring hall provisions of those agreements require that the Re- spondent maintain "an appropriate registration facility" "where [Q]ualified applicants shall be registered on the appropriate craft out-of-work list in the order of time and date of registration" as reflected on the individual's registration form. The contracts further provide for the utilization of the out-of-work lists on a first in, first out basis so that the first man registered shall be the first man referred.3 In an obvious effort to keep its members and job registrants apprised of those specific contract terms, the language quoted above, as well as the rest of the provisions in the Respondent's collective-bargaining agreements on the operation of its hiring hall, appears in 2 The current contract is effective until May 31, 1982. 3 With certain limited exceptions not relevant here. a large scale photocopy notice which is posted in a prominent position at the union hall. Notwithstanding the foregoing contractural require- ments, Business Manager Sullivan acknowledged that from August 1977 to January 1979 the Respondent made no effort to maintain a summary out-of-work list, but relied instead on only the registration forms which the job applicants submitted and which it kept in alphabeti- cal order in an office file cabinet. In an explanation for the Respondent's resort to the latter practice Sullivan testified that the period from August 1977 to January 1979 was one of full employment for the Union's mem- bers and that rather than utilize a summary out-of-work list he used a variety of methods to fill the high volume of job requests which came to the union hall. Thus, ac- cording to Sullivan, when he was unable to fill a con- tractor's order from the number of men present in the hiring hall on the day he received the request, he some- times telephoned Plumbers Local No. 59, a sister affiliate of the United Association and solicited its help in secur- ing plumbers. Sullivan further testified that, in addition to the latter source, he sometimes called upon other af- filiates of the International, viz, Local 108, Hamilton, Ohio, Local 162, Dayton, Ohio, Local 510, Middletown, Ohio, and others, where he knew of his own personal knowledge that their membership was experiencing un- employment. Sullivan further testified that from time to time he filled some orders by notifying persons whom he knew, again of his own knowledge, were about to be laid off and would therefore be available shortly.Finally, ac- cording to Sullivan, if there happened to be any "travel- ers"4 in the hiring hall at the time a work request was received, he would utilize them to fill the order. None of the foregoing methods of filling job requests was provided for in any provision of the Respondent's contracts, or described in any notice to members or to those who signed the work roster at the Respondent's hiring hall. Only the contractual requirements set forth above were posted there for the guidance of members and job applicants. Moreover, not only did the Respond- ent not maintain an out-of-work list, but it also appears from the record that the application for registration which a jobseeker filled out when he came to the hiring hall was good only for the day it was completed. Thus, Sullivan testified, "[By] receiving the application I know that they're [the job seekers] in the hallway [at that time]." Similarly, at another point in his testimony, the business manager stated, "[I]f we have someone in the hall that morning [and a work request comes in] . . . we refer them." On March 13, 1978, McKibben, the Charging Party herein, came to the Respondent's hall and filled out an application for registration. A work request for welders had just been received from Kaiser. Sullivan offered to refer McKibben to Kaiser for a welding job, but the latter declined the offer on the ground that he did not have a welding certificate. Thereafter, McKibben was not referred to any other job. However, subsequent to that date the Respondent received many requests for 4 A "traveler" was a member of another local of the International who was seeking work in the Cincinnati area. 420 JOURNEYMEN PIPE FITTERS LOCAL NO. 392 nonwelder pipefitters. Sullivan acknowledged that Kaiser alone requested in excess of 200 nonwelder pipefitters such as McKibben. The General Counsel contends that, if the Respondent had adhered to its contractual responsibilities and main- tained a summary out-of-work list rather than merely storing the registration forms in a file cabinet, McKib- ben's name would have been on such a list and that, in the light of the foregoing statistics, he would have been referred out to a nonwelder pipefitter job after his initial registration on March 13. This allegation is denied by the Respondent. B. The Alleged Violation of the Act The Board has held that a union which has an exclu- sive hiring hall must represent all individuals who seek to utilize that hall in a fair and impartial manner. Interna- tional Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local Lodge No. 169, AFL-CIO (Riley Stoker Corporation), 209 NLRB 140, 144-145, 150 (1974). The Board has also held that it is a breach of that duty of fair representation when a union acts in contravention of its contract. Miranda Fuel Com- pany, Inc., 140 NLRB 181, 188-190 (1962). It is clear that the procedures which Business Manager Sullivan used in operating the hiring hall after April 1977 were contrary to the quoted provisions of the Respondent's collective- bargaining agreement with the MCA. No evidence was proferred to establish that those terms had ever been modified by the parties. Nor was there any evidence that the referral system which Sullivan utilized between August 1977 and January 1979 was a practice in which any employer had acquiesced. Consequently, in denying to job applicants the contractual right of being referred on a first in, first out basis, the Respondent breached its duty of fair representation. Miranda Fuel, supra; Local Union No. 725 of the United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO (Powers Regula- tor Company), 225 NLRB 138, 143 (1976). The Board has further held that a union which oper- ates a hiring hall without the use of objective criteria in making referrals engages in arbitrary conduct that is vio- lative of its duty of fair representation. Local Union Vo. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Totem Beverages, Inc.), 226 NLRB 690, 699-700 (1976); Riley Stoker, supra. In the present case, Sullivan, as the Respondent's agent, used his unfettered discretion in making referrals. Apart from the use of the out-of-work lists of sister locals, there were no obvious standards applied to the method whereby Sullivan filled some jobs by selecting union members who were then at work, but whom he person- ally knew were about to be laid off. None of these meth- ods met any objective criteria, and, by their utilization, the Respondent failed to adhere to the requirement that differing treatment of individuals in the referral process can only be based on relevant distinctions among the ap- plicants. Finally, there was no evidence that the Respondent ever notified any of the job applicants that it was depart- ing in any manner from the referral system established by its collective-bargaining agreements. Those who sought to utilize its hiring hall were never told that the referral system actually in use during the period in ques- tion did not comply with the terms of the contract even though those terms were posted in the hiring hall. The Respondent's failure to do so was arbitrary and in breach of its duty to keep the job applicants informed and to represent them fairly. Local No. 324, International Union of Operating Engineers, AFL-CIO (Michigan Chapter, As- sociation General Contractors of America, Inc.), 226 NLRB 587 (1976); Miranda Fuel, supra. In the present case, on March 13, 1978, McKibben came to the Respondent's hiring hall and completed an application for registration. That same morning he was offered a referral to a Kaiser job as a welder. When McKibben declined this offer because he did not feel qualified for such work, the Respondent made no at- tempt to give him another opportunity for employment. The Respondent did not contend that McKibben ever withdrew his registration for work. Consequently, he was entitled to be considered for the next opportunity which came along on a first in, first out basis. Although the Respondent acknowledged that during the period subsequent to McKibben's registration Kaiser alone re- quested in excess of 200 nonwelder pipefitters, such as McKibben, the latter was never called by the Respond- ent to fill one of those jobs. Business Manager Sullivan conceded that throughout this period the Union was not keeping a summary out-of-work list. Instead, as described by Sullivan, the registration forms were merely filed al- phabetically in the office of Local 392. There was no testimony which established that any use was made of the job requests that were filed away in this fashion. In fact, Business Manager Sullivan testified that he filled job requests throughout the period by referring out those applicants who were in the hiring hall on the particular day that an employer's request came to his at- tention, by calling on other locals for their assistance in securing pipefitters to fill job requests, and by relying on his own knowledge as to who might be available shortly on jobs that were being completed. There was no clear evidence that Sullivan ever went to the file cabinet where the registration forms were purportedly filed. From Sullivan's own testimony it would appear that on most occasions during the period in question if a job ap- plicant was not in the hiring hall on the day a contrac- tor's request was received that individual never received a referral. In any event, it is apparent from the record herein that the Respondent's practice of merely keeping the registration forms in a central file cabinet did not comply with the contractual requirement that it maintain an out-of-work list. A labor union is under a duty to con- form with and adhere to lawful contractual standards in the administration of the requirements as to registration, preferences, and referrals. The Board has held that any departure from those requirements which results in a denial of employment to a member falls within that class of discrimination which inherently encourages union membership and is a violation of Section 8(b)(2) and (I)(A) of the Act. International Association of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, Local 22 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Rosendahl, Inc.), 212 NLRB 913 (1974); International Brotherhood of Electrical Workers, Local 592 (United En- gineers & Construction Co.), 223 NLRB 899, 901 (1976). 5 In the light of the findings set forth above, it is now found that the Respondent offered no valid justification for failing to maintain an out-of-work list which would have assured McKibben, and other job applicants similar- ly situated, of their contractual right to be referred ahead of other applicants who registered later than they did. By such conduct the Respondent breached its duty of fair representation of McKibben and other job applicants. Consequently, it is now found that on the facts present here the Respondent violated Section 8(b)(1)(A) and (2) of the Act as alleged in the complaint. CONCLUSIONS OF LAW I. Local 392 is a labor organization and the Employer is engaged in commerce, all within the meaning of the Act. 2. The Respondent and the Employer have been par- ties to collective-bargaining agreements whereby the Re- spondent operates an exclusive hiring hall and referral system for the referral of employees by the Respondent to work for Kaiser and other employers. 3. The aforesaid contract requires that the Respondent maintain an out-of-work list for those job applicants who are awaiting referral. During the period from August 1977 to January 1979, the Respondent failed to maintain this list and also failed to observe any objective criteria in referring applicants for employment. By such conduct the Respondent did not represent fairly those applicants such as McKibben, to whom it owed this duty, and it thereby violated Section 8(b)(l)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, it will be recommended that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action to effectuate the policies of the Act. Having found that the Respondent unlawfully caused Gary McKibben to be denied referral to work from and after March 13, 1978, it will be recommended that the Respondent be ordered to make him whole for any loss of earnings suffered as a result of the discrimination 5 Cf. L. R.B. v. International Association of Bridge, Structural and Or- namental Iron Workers. Local 433 [The Associated General Contractors of California, Inc.], 600 F 2d 770 (9th Cir. 1979), where the Court stated at 777: The Union's collective bargaining agreement contained an explicit and unambiguous procedure governing the dispatch of job appli- cants. The Board's uncontested findings showed that the Union's business agents made 76 referrals in violation of the terms of the agreement.... The Union offered no reasons, legitimate or other- wise, to justify its practices. In these circumstances we conclude that the Union's arbitrary display of power violated §§(b)(I)(A) and 8(b)(2) of the Act. . .. As the Board found, the natural and foresee- able consequences of a system by which the Union's agents arbitrar- ily dispensed their patronage was to encourage loyalty of the job ap- plicants to the Union and its agents. against McKibben by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him until April 27, 1979,6 less net earnings during such period. Loss of earnings shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, Journeymen Pipe Fitters Local No. 392, affiliated with the United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of U.S. and Canada, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Operating an exclusive hiring hall and referral system for referral of employees to Kaiser Engineers, Inc., and other employers without the use of an out-of- work list and without any objective criteria or standards and in a discriminatory manner. (b) Failing and refusing to refer Gary McKibben to work as an employee of Kaiser, or of any other employ- er, pursuant to the operation of an exclusive hiring hall and referral system for the referral of employees to em- ployers without resort to an out-of-work list and without any objective criteria and in a discriminatory manner, thereby causing or attempting to cause those employers to deny McKibben employment. (c) In any like or related manner restraining or coerc- ing employees or applicants for employment in the exer- cise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Make whole Gary McKibben in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all hiring hall records, dispatch lists, referral cards, and other documents necessary to analyze and compute the amounts of backpay due McKibben under the terms of this Order. (c) Operate the Respondent's hiring hall and referral system in a nondiscriminatory manner based on objective criteria and standards. (d)Post at its main office in Cincinnati, Ohio, and at its meeting places for members or applicants for referral 6 In his complaint the General Counsel alleges that the discrimination against McKibben continued only until this date. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the Naitonal Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 422 JOURNEYMEN PIPE FITTERS LOCAL NO. 392 copies of the attached notice marked "Appendix. "8 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Re- spondent's representative, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- ' In the event that this Order is enforced by a Judgment of a United States Court of, Appeals, the W, rds in the notice reading "Posted by Order of the National Labor Relations Board" shall read i'osled P'ursu- ant to a Judgment f the United States Court of Appeals Enforcing an Order of the National Labor Relations Hoard" tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order. what steps the Respondent has taken to comply herewith. 423